THE REPUBLIC OF UGANDA
IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA
MISC. APPL. NO. 031/2017
(ARISING FROM L.D. 954/2006)
G4S SECURE SOLUTIONS (U) LTD ……………………………… APPLICANT
201 FORMER EMPLOYEES OF G4S SECURITY…..……………………... RESPONDENT
- THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE
- THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA
- MR. EBYAU FIDEL
- MS. HARRIET NGANZI MUGAMBWA
- MR. F.X. MUBUUKE
This is an application made under rule 6 of the Labour Disputes (Arbitration and Settlement) (Industrial court Procedure) Rules 2012 and Regulations 45(i) and (5) of the Employment Regulations 2011. The application seeks orders of this court to enlarge time within which to file a notice of appeal against the Labour award – Labour Dispute No. C.B. 954/2006. In the alternative the application seeks the order of this court to adopt a notice of appeal filed by the applicant on 18/3/2009 and lastly the application seeks an order of costs.
The facts as enumerated by the applicant (and not disputed by the respondent) may be summarized as follows:-
The respondents originally sued the applicant before Kampala Labour Office for, inter alia, long service awards and repatriation. On 28/2/2007 an award was entered in favor of the respondents against which the applicant was not satisfied and filed a notice of appeal to the Labour office on 16/03/2007 indicating an intention to appeal to the Industrial Court. The respondents filed execution proceedings in the High court which were successful but on appeal to the court of appeal execution was halted. The respondents appealed to the supreme court which ordered them to file a fresh suit in the High court since the Industrial court was not at the time operationalized. 0n 20/9/2012, the respondents filed H.C.C.S 285/2012. While this suit was pending in the High court the Industrial Court was in April 2014 operationalized and on 21/5/2014 the High court referred the said suit to this court. According to counsel for the respondent, the said civil suit at a particular time after 29/1/2015 was dismissed for want of prosecution. Consequently the respondents applied to this court for orders to execute the Labour Officer’s award of 28/02/2007 and the registrar of this court issued a notice to show cause why execution should not issue. When the applicant tried to file an appeal against the labour officer’s award, the registrar of this court (according to both parties) declined to register the same on the ground that no notice of appeal had been filed in this court and the appeal was out of time, hence this application.
After filing the necessary documents, this court ordered both counsel to file written submissions. In his submission, counsel for the respondent raised a preliminary point of law which we now proceed to dispose.
He submitted that the notice of appeal filed on 16/03/2007 should be struck out for want of prosecution. He argued that the notice of appeal having been filed in 2007 and the applicant having failed to prosecute the same even after 21/2years of the establishment of the Industrial Court in 2014, should be dismissed under order 17 rul3 (6) (i) of the Civil Procedure Rules. He also argued that contrary to regulation 45(1) of the Employment Regulations 2011 which provide for filing a notice of appeal in the Industrial Court, the applicant filed the same in the Labour Office.
In reply to the above preliminary point of law, counsel for the applicant argued that a notice of appeal was not a suit as contemplated by order 17 rule 6(i) of the Civil Procedure Rules since the definition of a “suit” as defined by section 2 of Civil Procedure Rules according to him excludes a notice of appeal. He also argued that it was not true that the applicant failed to prosecute the appeal since from 2007-2014, the Industrial court was not in operation and by the time this court was constituted both parties were litigating over HCCS No.285/2012 as ordered by the Supreme Court. He contended that HCCSNo.285/2012 having been referred to this court for determination, the applicant could not proceed with prosecuting the appeal.
We have internalized the submissions of both counsel on the preliminary point of law. It is our considered option that order 17 rule 6(1) of the Civil Procedure Rules does not apply to appeals. The order deals specifically with “suits” which by definition are different from “appeals”.
An appeal in our view can only be dismissed under order 43 and in our considered view the circumstances in this case do not measure up to the provisions of order 43 of the Civil Procedure Rules.
As to the forum for filing the notice of appeal, indeed regulation 45(i) of the Employment Regulations 2011 provides that the notice of appeal be lodged with the Industrial Court.
Section 94(1) of the Employment Act provides for the same forum of appeal. It is our opinion that the regulations were made under the Parent Act and therefore they were meant to operationalize the provisions of the Act. Consequently ordinarily the proper forum for lodgment of the notice of appeal would be the Industrial Court.
However it is noted that at the time the award was made the said regulations were not in force and neither was the Industrial Court in place, yet the applicant was required to appeal within the mandatory period of 30 days. We form the opinion that in the circumstances, lodging a notice of appeal in the Labour office was the only option that the applicant properly took. The preliminary objection is therefore overruled.
In his submission, counsel for the applicant reiterated that the applicant had shown sufficient cause to warrant extension of time whereas counsel for the respondent argued to the contrary.
There is no doubt that this court is mandated to grant an extension of time only if the applicant shows sufficient cause as to why a particular step was not taken within the stipulated time.
Relying on the case of Nicholas Roussos Vs Gullen Hussein Habib Girani&Anor Civil Appeal 9/1993, counsel for the respondent argued that grounds amounting to sufficient cause were: mistake by advocate, ignorance of procedure by an unrepresented defendant and illness by a party, which according to him were not available to the applicant.
He submitted that the applicant all along knew the fate of HCCS 285/2012 since there was communication of a proposal to withdraw the same by consensus under order 25(2) of the Civil Procedure Rules which the applicant ignored and the suit was dismissed for non-prosecution. He argued therefore that the applicant could not after 2 years claim that she did not know of the fate of the case and therefore could not pursue the appeal within the time prescribed.
He argued that the High Court suit and the applicant’s appeal were not related and that “in both cases it was clear that the rationale for the High court case and the appeal were different”. He argued that the applicant having failed to withdraw the appeal after the Industrial court had been constituted, she had no reason to come up with an application to extend time within which to prosecute the same appeal. According to counsel, if the applicant genuinely believed that the High court civil Suit obviated the need for the appeal, withdrawal of the same would have been the option so as to let the parties conclusively determine the High court civil matter.
On perusal of HCCS 285/2012, we discovered that the civil suit was filed by Olumu Dennis & 167 others , referred to this court on 2/09/2014, and registered in this court as Labour Dispute claim No. 015/2014. It was also discovered that the respondents filed in this court Labour Dispute Claim No. 262/2014 on 30/10/2014 claiming largely the sums awarded to them by the Labour Officer.
Whereas Labour Dispute claim 262/2014 was dismissed by the registrar of this court for being incompetently filed in this court (as a first instance court matter as opposed to having been a reference matter), Labour Dispute Claim 15/2014 (original HCCS 285/2012 was left intact and it is still pending in this court. It is therefore not true as the respondent submitted that “rather than file a formal application to withdraw the matter which would result in further dilatory conduct of the applicant, the respondent allowed the suit to die a natural death by avoiding to take any step in the suit for the period of two years. In which case the suit would be eligible to be dismissed for want of prosecution under order 17 rule 6(1) of the Civil Procedure Rules. Indeed the learned registrar duly obliged by having the same expunged from the court system”.
HCCS 285/2012 was filed by the respondents in our view because the Supreme Court in its Judgment pointed out “the dismissal of their appeal therefore should not be a bar to their filing a fresh suit before the HIGH Court, if they choose to do, which would enable the High court to hear and determine the merits of these claims”.
We agree with the submission of counsel for the applicant that the above suit was expected to address the enforcement challenges of the award by the labour officer in the absence of the Industrial court. The same case would determine the substantive rights of both parties. Therefore the expectation of the applicant that this court would determine the referred HCCS was legitimate. The respondent should have followed up the referred civil suit No. 285/2012 and fixed it for hearing or indeed withdrawn it from the registry. This would have given both parties opportunity to pursue the appeal but even then only if the applicant was aware of the fate of the said civil suit since it was not the withdraw of this civil suit but rather Dispute claim 262/2014 that had been communicated to the applicant.
On perusal of both the judgement of the court of appeal and the Supreme Court, we deduce the fact that both courts recognized the notice of appeal filed in the labour office.
The notice of appeal was a clear pointer that the applicant intended to appeal against the labour officer’s award and would have done so if the Industrial court had been properly constituted. The intention of the Supreme Court to advise the respondent to file a fresh suit was to fill the void left by the non-operationalization of the Industrial court and for the benefit of both parties to resolve the conflict. This being the case, we do not find the respondent culpable for having not pursued the appeal during the pendency of the said civil suit in this court even after the court was properly constituted. It is our position that the non operationalization of the industrial court to handle the appeal at the time it ought to have done, the fact that the applicant filed a notice of appeal in the labour office, the fact that the Employment regulations were not in operation at the time the labour officer granted the award and the fact that the respondent on the advice of the Supreme Court filed HCCS 285/2012 which is still pending in this court, all constitute sufficient cause as to why the respondent did not file a notice of appeal within the meaning of regulation 45(1) and (5) of the Employment Regulations 2011 and therefore why the appeal was not pursued.
Consequently we find it prudent and justifiable that the application be allowed and so it is. No order as to costs is made.
- THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE ………………………………
- THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA ………………………………
- MR. EBYAU FIDEL …………………………………………………
- MS. HARRIET NGANZI MUGAMBWA …………………………………………………
- MR. F.X. MUBUUKE ………………………………..………………